SEQ Properties Pty Ltd v Lorna O'Brien - [2014] QCATA 287

CITATION:

SEQ Properties Pty Ltd v Lorna O’Brien [2014] QCATA 287

PARTIES:	SEQ Properties Pty Ltd ACN 010 90 9092 (Applicant/Appellant)
v
Lorna O’Brien (Respondent)

APPLICATION NUMBER:

APL240-14

MATTER TYPE:	Appeals
HEARING DATE:	On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM (Presiding)
Member Rogers

DELIVERED ON:

9 October 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for leave to appeal is refused.

CATCHWORDS:

APPEALS - MANUFACTURED HOMES – where site agreement dispute –– where manufactured home encroaches on road reserve – where decision in favour of respondent - whether breach of duty by park owner to precisely identify site – whether park owner fulfilled statutory and contractual obligations – whether respondent showed park owner had caused loss - whether decision contrary to the evidence

Manufactured Homes (Residential Park) Act 2003 (Qld) s 25(4)

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

This is an application for leave to appeal a decision by the tribunal in a manufactured homes dispute. Orders were made requiring the park owner to reposition the home on site 185 so it does not encroach outside its boundaries or, in default, to pay the home owner the sum of $27,874.

Background

Ms O’Brien is a home owner at the mobile home park managed by SEQ Properties Pty Ltd. She bought her manufactured home in 2007 from its original owners. They had purchased the home and arranged for it to be installed on site 185 (which at that time was incorrectly identified as site 182) in 2003. Ms O’Brien entered into a site agreement for site 185 with SEQ on 19 October 2007.
It has now become apparent the home encroaches onto a Department of Transport and Main Roads reserve by 1.6 metres.[1] At the hearing of the original application[2] the learned member found at paragraph 28
SEQ is liable to Ms O’ Brien for its failure to properly identify the site sufficient to ensure that her home had been properly positioned on the site.
[1]Identification Survey Map dated 6 September 2011.
[2]O’Brien v SEQ Properties Pty Ltd OCL005 – 2013.

Grounds of Appeal

The park owner has appealed the decision saying[3]:
They (sic) decision in favour of the Respondent (as applicant) in the original matter was incorrect because there is no causal connection between the actions of the Applicant and the fact the Respondent acquired a manufactured home that encroached on to the neighbouring road reserve.
[3]Application for leave to appeal or appeal APL 240-14 filed 27 May 2014. Part C.
Because this is an appeal involving mixed fact and law, leave is necessary. Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[4]
[4]Pickering v McArthur [2005]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] QCATA 287
Decision Date: 9 October 2014

CaseChat Overview and Summary

The appeal was filed by SEQ Properties Pty Ltd against Lorna O'Brien, concerning a manufactured home situated on a residential park. The primary issue in the case was whether SEQ Properties Pty Ltd had breached its duty to precisely identify the site for the manufactured home, leading to the home encroaching on a road reserve. This encroachment subsequently resulted in a decision in favour of O'Brien. The court was required to determine if the park owner had fulfilled its statutory and contractual obligations and whether O'Brien had successfully demonstrated that the park owner had caused her loss. Additionally, the court had to assess whether the decision reached was contrary to the evidence presented.

The court evaluated the statutory and contractual obligations of SEQ Properties Pty Ltd, emphasizing the importance of accurately identifying the site boundaries for the manufactured home. It was determined that the park owner had met its obligations as per the legal requirements and contractual agreements. The court found that O'Brien had not provided sufficient evidence to prove that the park owner had caused her loss. Consequently, the decision reached was not contrary to the evidence and was upheld. The court concluded that the appeal should be dismissed, as the original decision was correctly made based on the evidence presented.

Orders

Orders of the court

1. The application for leave to appeal is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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